Saturday, April 21, 2018

Apps: What the law says

The flourishing smart device technologies market has created an incredible platform for entrepreneurs in Tanzania to develop mobile applications (apps).

Apps such as Smart Code’s M-Paper, Tigo’s Twende and Bank of Africa’s Swahiba Mobile are providing Tanzanians with special services which were impossible prior to the arrival of smart devices.

Mobile app developers who create successful apps make money through a variety of strategies.

One of the most common monetization strategies, especially for free apps with limited features, is the deployment of in-app purchases, which enable a user to make an in-app purchase to access more features thereby generating revenue for the app owner.

LinkedIn, for example, allows users to upgrade their experience by signing up for an all-purpose business plan account ($59.99/month), sales navigator account ($79.99), or a hiring/recruiter account ($199.99/month), thereby helping users to meet their individual needs.

The big question

The big question, which this article seeks to answer is: can a developer legally protect the exceptional functionality of his/her mobile app to prevent it from being copied? Stated differently, can a developer prevent others from reverse engineering his/her app?

Section 4 (see, definition of computer programme) and section 5(1) and (2) of the Copyright and Neighbouring Rights Act, Cap, 218 (R.E.2002) inevitably protect mobile apps against unauthorized copying from the moment they are created. But this protection does not cover the actual functionality of the mobile app.

Hence, copyright will not prevent others from reverse engineering a developer’s app and then encode their own app to work in a similar manner.

Patenting mobile apps

Developers who wish to protect the special functionality of their mobile apps need to register a patent with the registrar of patents at the Business Registration and Licensing Agency (BRELA) by submitting a completed form No.P2 accompanied by a patent document in triplicate.

The patenting of software-related inventions is a contentious matter.

Proponents of free and open-source software believe that such patenting should not be permitted.

They believe so because it curtails creativity and innovation instead of encouraging it.

Nevertheless, in jurisdictions like Australia and the U.S, there is greater attention on patentability of mobile apps.

Criteria for patent protection

According to Tanzania’s Patents (Registration) Act, Cap 217 (R.E. 2002), the most important criteria for patent protection is novelty and industrial applicability.

Novelty means that the invention must be new and beyond what is obvious to a person who’s skilled in inventions.

Industrial applicability means that the invention should be capable of being industrially workable in order to be patented.

In light of the above criteria, if a mobile app works in a unique way, then the app may be patented by the registrar of patents.

UK and European approach

Whereas in Australia and the U.S there is a flexible approach to patentability of mobile apps and other software-related inventions, in the UK and Europe there is a stricter approach to the same.

If a developer invents an app that can solve a technical problem, then there is greater likelihood for the app to be patented in Europe.

It should be noted, however, that Tanzania’s patent law reflects European and UK patent law.

Notwithstanding this, the registrar of patents in Tanzania will grant and issue a patent to a developer of a mobile app who has filed a complete patent application and met all the criteria, including paying the prescribed fees.

The effect of registration of a patent is that the owner gets the exclusive right to use such patent and to recover damages arising from infringement of the registered patent.

Any other person is precluded from exploiting the patented mobile app.

If another person wishes to have the patent app cancelled, then he/she must prove ownership to the contrary.

Patents for mobile apps and software inventions generally may be viewed as being controversial.

Yet, the bare truth is that if a developer disregards patenting his/her mobile app—despite the fact that it may have a special functionality—the developer will need to accept the reality of the existence of the free and open-source software market, which has provided a platform for other developers to create similar apps.